Unilateral Action Execution of the laws or legislation?

Types Executive Orders Executive Orders Presidential Memoranda Presidential Memoranda Presidential Proclamations Presidential Proclamations National Security Directives National Security Directives Impoundment Impoundment Signing statements Signing statements

Executive Orders A directive issued to officers of the executive branch, requiring them to take or stop taking an action, alter policy, change management practices, or accept a delegation of authority. A directive issued to officers of the executive branch, requiring them to take or stop taking an action, alter policy, change management practices, or accept a delegation of authority.

Executive Orders Informal in history Informal in history Process today Process today Published in Federal Register, numbered Published in Federal Register, numbered Legal Authority Legal Authority

Average Executive Orders per year (Washington through Reagan)

Presidential Proclamations States a condition, declares law and requires obedience, or recognizes an event. (Also pardons) States a condition, declares law and requires obedience, or recognizes an event. (Also pardons) Binding on the public. Binding on the public. Published in the Federal Register Published in the Federal Register

Presidential Memoranda Pronouncement directed to executive branch officials Pronouncement directed to executive branch officials No publication in Federal Register No publication in Federal Register Below the radar of MCs and media Below the radar of MCs and media

National Security Directives Formal declaration to an agency or department head of a presidential national security decision, requiring follow-up. Formal declaration to an agency or department head of a presidential national security decision, requiring follow-up. Designed at the National Security Council Designed at the National Security Council Not published. Not published. Mostly classified. Mostly classified. Problems with small group dynamics, Congress’ exclusion Problems with small group dynamics, Congress’ exclusion

Impoundment The president refuses to spend funds appropriated by Congress The president refuses to spend funds appropriated by Congress Congress has restricted this practice (1974, 1987) Congress has restricted this practice (1974, 1987) He can only defer spending if: He can only defer spending if: A “special contingency” A “special contingency” To achieve savings through more efficient operations To achieve savings through more efficient operations He can only propose to permanently rescind funds, but Congress must approve within 45 days He can only propose to permanently rescind funds, but Congress must approve within 45 days

Signing Statements Traditionally innocuous Traditionally innocuous Since 1980s, provide the president’s interpretation of a law, announce Constitutional limits on implementation of it, or indicate directions about how to administer it. Since 1980s, provide the president’s interpretation of a law, announce Constitutional limits on implementation of it, or indicate directions about how to administer it. Since 1986, part of official legislative history Since 1986, part of official legislative history Used as de facto line item veto since Reagan Used as de facto line item veto since Reagan

Why take unilateral action?

Quick in an emergency situation Quick in an emergency situation Pay debts to important groups without committing many resources Pay debts to important groups without committing many resources Don’t attract much attention Don’t attract much attention Signing statements prevent vetoes of complex/end of session legislation Signing statements prevent vetoes of complex/end of session legislation

Problems?

Why not take unilateral action? Contribute to accumulation of power in executive hands Contribute to accumulation of power in executive hands Make it more difficult for successors to govern Make it more difficult for successors to govern Undermine existing administrative law procedures Undermine existing administrative law procedures

Federal Administrative Procedures Act (1946) Applies to all regulatory agencies (FAA, FDA, EPA, etc.) Applies to all regulatory agencies (FAA, FDA, EPA, etc.) Rulemaking procedures are to be transparent Rulemaking procedures are to be transparent Public can participate in the rulemaking process Public can participate in the rulemaking process When agencies make rules binding on the public or quasi-judicial decisions resolving disputes about rules, they have to follow certain procedures When agencies make rules binding on the public or quasi-judicial decisions resolving disputes about rules, they have to follow certain procedures

Why not take unilateral action? Contribute to accumulation of power in executive hands Contribute to accumulation of power in executive hands Make it more difficult for successors to govern Make it more difficult for successors to govern Undermine existing administrative law procedures Undermine existing administrative law procedures Easy for next administration to undo Easy for next administration to undo Closed policymaking process  bad policy? Closed policymaking process  bad policy?